Citation Nr: 0405001
Decision Date: 02/23/04 Archive Date: 02/27/04
DOCKET NO. 03-15 430 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
R. M. Panarella, Counsel
INTRODUCTION
The appellant is the surviving spouse of the veteran who had
recognized Philippine guerrilla service from October 1941 to
April 1942 and from July 1945 to April 1946. He died in June
1991. This matter is before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila.
FINDINGS OF FACT
1. The veteran died in June 1991 at the age of 74.
2. During his lifetime, the veteran had not established
service connection for any disability.
3. A Certificate of Death certifies acute respiratory
failure as the veteran's immediate cause of death, severe
bronchospasm as the antecedent cause, chronic obstructive
pulmonary disease secondary to chronic bronchitis, with other
significant conditions of emphysema and pulmonary
tuberculosis.
4. A pulmonary disease was not manifested in service;
pulmonary tuberculosis (PTB) was not manifested within three
years of the veteran's discharge from service; and there is
no competent (medical) evidence that relates the veteran's
cause of death to his active service.
5. The veteran's death was not due to a disability of
service origin, nor did a service-connected disability
substantially or materially contribute to cause his death.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) became law. The VCAA applies to all pending claims
for VA benefits, and redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant of the information and evidence
necessary to substantiate a claim for VA benefits. See 38
U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102,
3.159 (2003).
VA must notify the appellant of evidence and information
necessary to substantiate her claim and inform her whether
she or VA bears the burden of producing or obtaining that
information or evidence. See 38 U.S.C. § 5103A; Quartuccio
v. Principi, 16 Vet. App. 183 (2002). VA must also make
reasonable efforts to assist the appellant in obtaining
evidence necessary to substantiate the claim for the benefit
sought, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A..
In the present case, the appellant was informed of the
evidence needed to substantiate her claim by means of August
2001 and August 2003 letters from the RO, the March 2002 and
November 2002 rating decisions, and the April 2003 Statement
of the Case. In these documents, the appellant was informed
of the basis for the denial of her claim, of the type of
evidence that she needed to submit to substantiate her claim,
and of all regulations pertinent to her claim.
The August 2001 letter was issued prior to the adjudication
of the appellant's claim and specifically advised her of the
provisions of the VCAA, including which evidence and
information was her responsibility, and which evidence would
be obtained by the RO. Accordingly, the RO's actions
complied with the holding of Pelegrini v. Principi, No. 01-
944 (U.S. Vet. App. Jan 13, 2004) which held, in part, that a
VCAA notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim for VA benefits.
In addition, Pelegrini held, in part, that a VCAA notice
consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1).
In this case, although the VCAA notice letter that was
provided to the appellant does not contain the "fourth
element," the Board finds that subsequent documents provided
to the appellant fully notified her of the need to submit any
evidence pertaining to her claim. In August 2003, the
appellant submitted a written statement that she had no
additional evidence to submit and desired that her case be
certified to the Board. While the August 2001 letter advised
the appellant to submit evidence within 60 days, she was also
informed that evidence received within one year would be
considered. In fact, everything she has submitted to date
has been accepted for the record and considered. Under the
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701,
117 Stat. 2651, (Dec. 16, 2003) (to be codified 38 U.S.C.
§ __), the Board may proceed with appellate review. The
Board finds that these various documents and letters provided
to the appellant satisfy the notice requirements of the VCAA.
She is not prejudiced by any technical notice deficiency, and
a remand to correct any such deficiency would serve no useful
purpose. See Conway v. Principi, No. 03-7072 (Fed. Cir. Jan.
7, 2004).
As to the duty to assist, the RO considered service medical
records, VA medical records, and private medical reports.
The appellant has submitted no additional evidence and did
not request a personal hearing. In claims for disability
compensation the VCAA requires that VA obtain medical
opinions when necessary for an adequate decision. A medical
opinion is deemed to be necessary if the information and
evidence of record does not contain sufficient competent
medical evidence to decide the claim, but includes competent
lay or medical evidence of a current diagnosed disability or
persistent or recurrent symptoms of disability, establishes
that the veteran suffered an event, injury, or disease in
service, or has a disease or symptoms of a disease manifest
during an applicable presumptive period, and indicates the
claimed disability or symptoms may be associated with the
established event, injury, or disease. See 38 C.F.R
§ 3.159(c)(4).
A recent opinion of the U.S. Court of Appeals for the Federal
Circuit upheld the statutory provision that requires VA to
obtain a medical opinion only when the record indicates that
the disability may be related to active service but does not
contain sufficient medical evidence to make a decision on the
claim. In other words, the appellant is required to show
some causal connection between the death or disability and
military service. See Wells v. Principi, 326 F.3d 1381
(2003). Although a VA medical opinion was not obtained in
this case, the probative evidence of record does not show the
veteran sustained an event, disease, or injury in service
that is related to his cause of death. For this reason, the
Board finds a VA medical opinion is not necessary for an
adequate decision. Consequently, the RO has fulfilled its
duty to assist the appellant and no further action is
necessary to comply with the VCAA.
The appellant believes that the veteran's death was related
to his period of active service. The Certificate of Death
shows that the veteran died in June 1991 due to acute
respiratory failure caused by severe bronchospasm, with
additional conditions of chronic obstructive pulmonary
disease secondary to chronic bronchitis, emphysema, and PTB.
The service medical records consist of a July 1945 physical
examination report, September 1945 clinical records, and an
April 1946 Affidavit for Philippine Army Personnel. The July
1945 examination and the April 1946 Affidavit contain no
complaints or findings of pulmonary disease. In September
1945, mild bronchial asthma was diagnosed. The veteran
returned to duty within a few days; a chest x-ray found no
evidence of pulmonary infiltration.
A private medical report shows that the veteran was
hospitalized from April to June 1964 due to acute infectious
hepatitis. A February 1967 chest x-ray found densities of
the left and right hemithorax. A March 1967 private medical
report stated that the veteran had pulmonary tuberculosis
since 1962. A September 1967 radiology report contained an
impression of active, moderately advanced, PTB.
VA hospital reports show that the veteran was admitted with a
diagnosis of PTB in February 1967, June 1968, April 1972,
November 1986, and May 1991. It was indicated that the
veteran had had tuberculosis since 1962. In May 1991,
chronic obstructive pulmonary disease was diagnosed.
The appellant submitted a private medical report dated in
January 1944 that diagnosed the veteran with heart disease,
bronchospasm, chronic bronchitis, pulmonary emphysema, and
PTB. The report contained definitions of the diagnoses, but
no objective findings or diagnostic tests to support the
diagnoses. The RO determined that this report could not be
accepted as credible evidence because the tuberculosis
medication listed by the physician was not available in
January 1944. In addition, the reporting physician was not
found registered on a search of all certified physicians in
the Philippines.
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. § 3.303. Where the determinative issue involves a
medical diagnosis, competent medical evidence is required.
This burden typically cannot be met by lay testimony because
lay persons are not competent to offer medical opinions. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
The mere fact of an in-service injury is not enough; there
must be chronic disability resulting from that injury. If
there is no evidence of a chronic condition during service,
or an applicable presumption period, then a showing of
continuity of symptomatology after service is required to
support the claim. See 38 C.F.R. § 3.303(b). Service
connection may be presumed for PTB, if it became manifest to
a degree of 10 percent or more within three years of
separation from active service. 38 U.S.C.A. §§ 1112, 1113;
38 C.F.R. §§ 3.307, 3.309. For PTB shown by x-ray in active
service, x-ray evidence alone may be adequate for a grant of
direct service connection. 38 C.F.R. § 3.370. However, a
diagnosis of active PTB by private physicians on the basis of
their examination, observation, or treatment will not be
accepted to show the disease was initially manifested after
discharge from active service (during the presumptive
period), unless confirmed by acceptable clinical, x-ray or
laboratory studies, or by findings of active tuberculosis
based upon acceptable hospital observation or treatment. 38
C.F.R. § 3.374.
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. See 38 U.S.C.A. § 1310; 38
C.F.R. § 3.312(a). In order to constitute the principal
cause of death the service-connected disability must be one
of the immediate or underlying causes of death, or be
etiologically related to the cause of death. See 38 C.F.R.
§ 3.312(b).
Applying the above law to the facts of this case, the Board
finds that a preponderance of the evidence is against service
connection for the cause of the veteran's death. The record
establishes that the veteran died of complications from
pulmonary disease. The record is devoid of any evidence that
relates any chronic pulmonary disease to the veteran's active
service. There is no evidence that the veteran incurred such
a chronic disability during active service or that PTB was
manifested within the presumptive period following separation
from active service. Rather, the evidence shows that the
veteran developed PTB many years following his discharge from
service.
While the veteran had an episode of bronchial asthma in
service, there is no competent evidence that this episode was
other than acute or that it was related to his subsequent
death-causing pulmonary disabilities. For the reasons
discussed above, the medical report dated January 1944 and
submitted by the appellant is not considered credible. In
addition, that report did not contain the acceptable
clinical, x-ray or laboratory studies necessary for a
diagnosis of PTB. The report is also inconsistent with the
VA and private medical evidence that identify the onset of
the veteran's PTB as many years later.
Although the appellant believes that the veteran's death was
due to active service, the record contains no competent
(medical) evidence to corroborate this belief. She herself
is a layperson, and as such is not competent to opine
regarding medical etiology. In conclusion, the record
contains no competent evidence that any disability that was
incurred or aggravated in service caused or contributed to
cause the veteran's death. Therefore, service connection
must be denied.
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2